3rd Party Remote Call Monitoring Feature

It is well understood that in most situations, it is ethical if not also legally necessary, to inform callers that they are being recorded during a call. That’s why contact centers that record customer calls inform the caller that the call may be recorded.

The warning that calls may be recorded might not be strictly necessary, however, at least according to a recent court case in California.

On April 8, the United States District Court for the Central District of California denied the plaintiff’s motion for class certification in Torres v. Nutrisystem, Inc., a lawsuit alleging Nutrisystem violated California Penal Code by recording callers without proper notification.

Nutrisystem does record calls when a customer calls into its toll-free number, and like most companies it notifies the caller at the onset that the call might be recorded. The Nutrisystem call system contained a loophole, however, where callers could bypass the disclosure by hitting any button during the welcome message.

Not knowing about the call recording because of skipping the disclosure was why Torres sued.

The court rejected the case on several grounds.

The main reason for throwing out the suit, according to a recent article at Lexology.com, was that having a message at the beginning of the call gave reasonable expectation that the call would be recorded, even if the individual took action that caused him or her to not hear the disclosure.

The court also rejected the class action suit because Nutrisystem had since changed its call system so the disclosure could not be bypassed, keeping it from being a persistent issue that would affect others broadly.

But the most interesting part of the ruling was the suggestion that the basis of the suit, commonality and predominance, might have been lacking even if there was no disclosure at all.

Or put another way:

“The court hinted that common issues may be lacking given that it is now well-known that businesses may record customers’ communications with their customer service representatives and that certain customers may therefore expect their calls to be recorded even absent a disclosure that the call may be recorded,” according to the Lexology piece.

Call recording is such a common feature of the call center, and callers have been hearing the “we may record your call for quality or training purposes” for so many years, that the warning is getting close to no longer being strictly necessary because the common assumption by the public is that calls are recorded.

This point was only hinted, and it would take years of court trial cases before a business would be wise to cease telling callers that they are being recorded.

But, every change in the law starts somewhere. The Nutrisystem case is very interesting one for the contact center—and for contact center productivity in general if callers and agents no longer have to explicitly deal with the call recording disclosure issue.